Ride or die.
Support The Bulwark.
  Join Now

Should Trump Be Pardoned? Should He Be Prosecuted?

And what will happen if he pardons himself?
December 14, 2020
Featured Image
US President Donald Trump speaks to the press as he departs the White House in Washington, DC, on October 30, 2020. (Photo by ANDREW CABALLERO-REYNOLDS / AFP) (Photo by ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

Should President Trump be prosecuted for crimes after he leaves office?

There can be no single overarching answer to this question; the relevant facts and possible scenarios are too multifarious. Neither a charitable thumbs-up (“show restraint”) nor a gladiatorial thumbs-down (“nail the SOB”) works here. Like most things legal, the answer is both yes and no, depending on who, what, when and where.

But even in those instances where it would be impossible, inappropriate, or merely unwise to use the criminal justice system to hold Trump legally accountable, he can be held accountable politically, and concrete changes to laws, regulations and norms can reduce the damage that a future Trump might try to inflict on the nation.

Here’s one way to break down the prosecutorial decisions that the Biden administration and state criminal justice systems will have to make when Donald Trump leaves office.

Federal Crimes Unrelated to Actions Taken in Trump’s Capacity as President

The U.S. attorney for the Southern District of New York is reportedly investigating Trump for a variety of crimes that have nothing to do with presidential actions. We don’t know the full scope of those investigations, but reports suggest that they include tax fraud, defrauding banks and other lenders, campaign finance violations, and embezzlement of inaugural committee funds.

Who knows what else lurks on the hard drives of the Southern District of New York, or around the coffee stations in the offices of other U.S. attorneys. But this is more than enough to keep Trump’s lawyers busy for another decade.

As Jonathan Chait pointed out in a pre-election article in New York magazine, the prospect of an electorally defeated Trump would immediately set off a conflict between two fundamental democratic values, the rule of law and mutual toleration:

The experience of Black racial oppression shows that the absence of the rule of law is a pervasive, terrifying insecurity. A society without the rule of law is one in which the strong prey upon the weak. The small-scale version is a town where you need the local warlord or mafia boss to solve any problem or dispute; the nation-state version is Vladimir Putin’s Russia, where the mafia is the government and bribery is endemic.

Mutual toleration means that political opponents must accept the legitimacy and legality of their opponents. If elected leaders can send their opponents to prison and otherwise discredit them, then leaders are afraid to relinquish power lest they be imprisoned themselves. The criminalization of politics is a kind of toxin that breaks down the cooperation required to sustain a democracy. This, along with the misogyny, was what made Trump’s embrace of “Lock her up!” so terrifying in 2016. He was already using the threat of imprisoning opponents as a political-campaign tool.

If the government is run by lawbreakers, though, the state faces a dilemma: Either the principle of equal treatment under the law or the tradition of a peaceful transition of power will be sacrificed. It’s hard to imagine any outcome under which the rule of law survives Trump unscathed.

The dilemma, in short, is whether in Trump’s case the principle that no person is above the law can be reconciled with the principle that in the United States of America presidents don’t send their political opponents, much less their predecessors, to prison.

The short answer is that it can’t.

Failure to prosecute Trump for crimes that would send anybody else to prison, merely because he served a term as president, would send the unmistakable message that presidents are above the law. At the same time, prosecuting him after he leaves office would inevitably stink of political retribution, and would further inflame the nation.

In a situation where there are no good options, decisions still must be made. In this particular situation, it would be a mistake to go all-in on either side. We need to do the best we can to hold Trump accountable, and thereby vindicate the rule of law, while at the same time bending over backwards to avoid the appearance of political retribution as much as possible, knowing of course that we can’t please everybody.

The best way to thread that needle is for Biden to take a hands-off approach, let the professional prosecutors in the Southern District of New York do their job and move forward with their investigations, all the while making it clear that he will never question their decisions to indict or not. That won’t please everyone, but it will vindicate the rule of law in a fashion that avoids, as much as possible, the appearance of political retribution.

Any possibility of Trump being held criminally accountable for federal crimes, of course, would be frustrated if he were pardoned for “offenses against the United States.” This language—used as blanket coverage for violations of federal law in the broadest presidential pardons, as in President Ford’s pardon of President Nixon—is derived from the Constitution’s clause regarding the president’s pardon power: “The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States.” A valid, enforceable pardon would prohibit federal prosecutors from holding Trump criminally accountable for any pre-pardon conduct.

But there’s a catch. Not all pardons are alike.

The legal force of a pardon in this case would depend more on who grants it than what it says. And, assuming Biden does not issue such a pardon, there are only two other possibilities: Either Trump purports to pardon himself or he resigns in order to let the next person in the line of succession, Vice President Mike Pence, do the dirty work for him.

If Trump makes an early exit and Pence pardons him after being sworn in, it’s game over. While ethically odious, such a pardon would be constitutionally sound and legally binding. Assuming the pardon is sufficiently broad, attempting to charge Trump with federal crimes would be a nonstarter. Maybe investigations could be completed, maybe the case against Trump could be set forth in an indictment against somebody else (the Trump Organization, the defunct Trump Foundation, one of his kids or employees, the campaign committee, etc.), but Trump himself would escape criminal accountability for any federal crimes committed prior to the date of the pardon.

But if Trump purports to pardon himself, all bets should be off.

Federal prosecutors should view a purported self-pardon as an invitation to file any charges warranted by the facts, full stop. Criminal indictments would not only hold him legally accountable, but also would vindicate the principle that in the United States a president is not a king, cannot be his own judge and jury, and does not have the constitutional authority to pardon himself. There is no precedent for a president pardoning himself, constitutional scholars are divided on whether it is possible, and the only way to test a purported self-pardon would be to file charges, let Trump assert a defense that his self-pardon immunizes him from prosecution, and defeat that defense in court.

Verdict:

  • Biden and his attorney general shouldn’t take any position on whether Trump should be prosecuted for personal and financial crimes unrelated to actions taken in his presidential capacity.
  • They should make it clear that any decision to prosecute should be left where it belongs, in the hands of professional prosecutors who make charging decisions every day, and that Trump should be treated no better or worse than any other American.
  • If there’s insufficient evidence to support a criminal charge, that’s fine.
  • If there’s sufficient evidence to indict, that’s fine too.
  • If Trump is pardoned by Pence, the pardon has to be respected, but ways to hold Trump politically (as opposed to criminally) responsible should be explored.
  • If Trump attempts to pardon himself, it should be challenged by bringing any appropriate criminal charges against him.

Federal Crimes Related to Presidential Actions

It isn’t always easy to determine which of the actions Trump took in his presidential capacity were actual violations of criminal statutes, as distinguished from moral crimes or unconscionable deviations from longstanding American norms.

The truths that we hold self-evident were never self-evident to Trump. Comedian Bill Maher calls it the “Gus principle.” In the 1976 movie Gus, a young Yugoslavian farm boy teaches his mule, Gus, to kick a soccer ball on command. When the owner of a hapless California football team discovers Gus’s unique skill, he drafts Gus to kick field goals. After a referee objects, the owner successfully argues that there’s nothing in the rules that says that a player must be human.

Self-evident? Maybe to you. Prohibited? Show me the rule.

Separate small children from their parents and hold them in cages? Order your attorney general to reward your friends and punish your enemies? Blurt out classified information to a foreign adversary? Undermine the credibility of the American intelligence community? Use the White House as a prop for a political rally?

Self-evident? Maybe to you. Prohibited? Show me a statute that says it’s a crime for a president to do any of that.

A remedy for this kind of norm-busting, un-American conduct is more likely to come in the political sphere than in a criminal trial. In the absence of clear, directly on-point statutes criminalizing this specific behavior, trying to shoehorn this conduct into broader statutes would likely fail in court. Failing in court would, in turn, result in the opposite of accountability—it would lend a gloss of legality to the conduct and provide ammunition to the witch-hunt crowd.

At the same time, a handful of Trump’s presidential actions fit quite nicely into a criminal framework. Three come to mind: (1) Trump’s obstruction of the Mueller investigation, (2) Trump’s Ukraine quid pro quo, and (3) Trump’s attempts to overturn the results of the 2020 presidential election.

Although there are criminal statutes that clearly apply to each of these actions, the Biden administration should nevertheless decline to charge Trump with these crimes.

Trump’s obstruction of the Mueller investigation and his Ukraine quid pro quo have already been partially litigated. (More on this in a moment.)

Although his crusade to subvert and overturn the result of the 2020 presidential election—still going on, as of this writing—is usually discussed in terms of its catastrophic political consequences, it also has serious criminal implications. His attempts to strong-arm Republican state officials and legislatures into overturning a democratic election, thereby disenfranchising millions of voters, is arguably a violation of 18 U.S.C. Section 241, which makes it a crime to “oppress, threaten, or intimidate” any person in the free exercise of any right secured by the Constitution or the laws of the United States. Other statutes dealing with undermining or interfering with elections would also come into play.

But any attempt to indict and convict Trump on these charges would be an unholy mess, with only the remotest possibility of success and the certainty of a political Armageddon. There is no way that the country would come out the better for it.

That doesn’t mean that these sorry episodes, or others like them, should be forgiven or forgotten, just that they should be addressed outside of the criminal justice system.

James Fallows, writing in the Atlantic, proposes a two-pronged approach to redressing Trump’s misdeeds and destructive acts. First, Biden should address the corruption and corrosion of the executive branch by rebuilding every part of it: “Every executive agency and department needs top-to-bottom attention.” That pretty much goes without saying.

The second prong of Fallows’s proposal is a bit more ambitious. Fallows calls on Biden to launch independent investigations into three “catastrophes” inflicted on the nation by Trump: the mismanagement of the coronavirus pandemic, the border policies under which U.S. officials separated children from their parents, and the “purposeful or negligent destruction of the norms of government, the most important being the electoral process.” For this, Fallows proposes that Biden establish a commission, perhaps something like the 9/11 Commission.

Bob Bauer and Jack Goldsmith, both of whom have served at high levels the executive branch, offer a far more comprehensive and ambitious set of proposals to make it more difficult for a future president to exploit fissures in the structure of the presidency in a fashion similar to Trump.

In their book, After Trump: Reconstructing the Presidency, Bauer and Goldsmith propose more than fifty concrete changes to the laws, regulations, and norms that govern the presidency. Far too detailed to summarize in a few words, the proposals include prohibitions on presidential obstruction of justice, reforms designed to reduce foreign state influence in elections and financial conflicts of interest, amendments of bribery statutes, prohibition of self-pardons, revisions of rules governing Justice Department independence and special counsel regulations, and much more.

While these proposals may look more like a wish list than a realistic plan of action, Bauer and Goldsmith recognize that getting from here to there is a long-term uphill climb: “This book is thus primarily about how to think about reform after Trump leaves the scene, whether that is in 2021 or 2025. Our primary aim is to spark informed debate about whether and how reform should proceed.”

The point is that the criminal justice system is not the only, and probably not the best, way to redress the damage Trump has done to our nation. There are other potential avenues to protect us from another Trump, whether it’s some kind of commission, legislative fixes, regulation reform, converting unwritten norms into written standards, or some combination of all of the above.

Verdict:

  • The Biden administration should decline to prosecute alleged crimes arising out of actions taken by Trump in his capacity as president.
  • An independent commission or some similar mechanism should be established to investigate the facts relating the Trump administration’s busting of norms and fully report all findings to the American public.
  • Legislative and administrative reforms of the kind suggested by Bauer and Goldsmith should be pursued vigorously to prevent, as much as possible, future presidents from behaving like Trump.

Russiagate, Obstruction of the Mueller Investigation, and Ukraine

Claims revolving around Trump’s involvement in Russia’s interference in the 2016 election and the Ukraine quid pro quo belong in a separate category because they have already been partially (albeit incompetently) adjudicated.

The Russian interference claims were the subject of the Mueller investigation. Mueller’s team made a prosecutorial decision not to indict Trump on conspiracy charges arising out of his alleged collusion with Russia. That decision was not based on the DOJ’s position that a sitting president can’t be indicted. Rather, Mueller found that the evidence was insufficient to support such a charge. While Mueller did not find that there was no “collusion,” as falsely claimed by Trump and his supporters, he did conclude that whatever collusion had taken place did not rise to the level of a crime.

Agree or disagree, the books are closed on that.

Not so with regard to the second part of the Mueller Report, dealing with obstruction of justice.

In a shocking dereliction of duty, Mueller failed to do the job he was given: to determine whether Trump had committed a crime, regardless of whether he could be indicted for that crime while sitting in office. By doing so, he left the decision on obstruction of justice in the tender, loving hands of Trump’s Roy Cohn, Attorney General Bill Barr. Barr’s Department of Justice predictably made a formal decision that the evidence of obstruction of justice was insufficient to constitute a crime, despite the fact that the Mueller Report laid out overwhelming evidence of criminal obstruction by Trump.

This sorry episode leaves open the legitimate question of whether the Biden administration’s DOJ should reverse Barr’s corrupt decision and indict Trump for obstruction of justice after he leaves office.

Andrew Weissmann, senior prosecutor in the Mueller investigation, argues that they should. Weissmann acknowledges that such a prosecution would further divide the country and stoke claims that a Biden administration’s Justice Department was exacting political revenge, but argues that Trump’s criminal exposure is clear, and that concerns about the repercussions of a prosecution are outweighed by the negative precedent that would be set by allowing Trump’s obstruction to go undeterred.

This is a close call.

I think it is fair to say that there is a rebuttable presumption that new administrations should not criminalize acts taken by previous presidents unless they are so clearly criminal violations, and so clearly serious, that failure to act would be a dereliction of duty. One could certainly argue that, in light of the facts laid out in the Mueller Report, the exception to the rule should apply here. Trump’s obstruction of the investigation was both clear and deadly serious.

Yet the fact that Mueller reached no conclusion on whether the conduct constituted the crime of obstruction of justice, and the sitting attorney general concluded that it did not, means that any fresh criminal prosecution would look like a do-over, an attempt by one administration to criminalize conduct that the previous administration had affirmatively decided was not a crime.

Mueller was far too timid in his handling of this matter, and Barr too politically compromised to make a good-faith decision. But it would still look like a do-over and an act of political revenge. Worse, there would be a very significant risk that a prosecution, which would inevitably devolve into a swearing contest about exactly who said what to whom and an unfathomable attempt to get inside Trump’s mind, would fail to yield a conviction.

Like his attempt to overturn the 2020 election, Trump’s already-adjudicated obstruction of justice should be addressed politically, not in a criminal trial.

The same goes for the Ukraine quid pro quo. Trump’s attempt to condition military aid to Ukraine on receiving a political favor in return reeks of bribery. Yet, when they launched impeachment proceedings based on that sorry event, the Democratic House notably declined to characterize Trump’s conduct as a crime, and Senate Republicans acquitted Trump in part on the grounds that no crime had been alleged or (in their view) committed.

This one is over. Any attempt to relitigate it in a criminal court would likely be both futile and too hot to handle.

Verdict:

  • Federal prosecutors should not relitigate either the obstruction of justice charges arising out of the Mueller investigation or the Ukraine quid pro quo.

State Law Claims

It has been widely reported that the Manhattan district attorney is conducting, as Weissmann put it, “a classic white-collar investigation into tax and bank fraud” in which Trump is likely a target. The attorney general for the state of New York is also conducting similar investigations which to date have been civil in nature, but they could quickly turn into criminal inquiries.

These are serious investigations that deal with Trump’s personal and financial activities. They have nothing to do with anything Trump did as president, and there is no reason to believe that Trump has been singled out for something that would not be prosecuted if committed by anyone else.

That makes this one easy. The Biden administration should have absolutely nothing to do with any decisions made by the Manhattan D.A. or the state of New York or any other state on whether to prosecute Trump under their laws just as they would prosecute any other citizen. Since the presidential pardon power doesn’t extend to violations of state law, any pardon or purported pardon for federal crimes would be irrelevant.

Verdict:

  • New York and other states should treat Trump the same way they would treat anybody else, including charging him with crimes if the facts so warrant.
  • The Biden administration should take no position on it one way or the other.

Final Verdict

So, to summarize:

1) Both state and federal investigations dealing with matters unrelated to actions taken by Trump in his capacity as president should be pursued in the normal course, just as they would against anybody else.

2) If Trump leaves office before the end of his term and Pence pardons him, no federal charges can be brought.

3) However, if Trump purports to pardon himself, federal prosecutors should not forgo any prosecution they were otherwise planning to bring.

4) Trump should not be prosecuted for actions taken in his capacity as president, including Russiagate, obstruction of justice, Ukraine, and attempting to overturn the results of the 2020 election.

5) However, Trump should be held accountable outside of the criminal justice system, and the Biden administration should actively pursue concrete changes to the laws, regulations, and norms that govern the presidency.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, philiprotner.com. Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.